In an opinion not touching precedent the U.S. Supreme Court avoided invalidating on constitutional grounds the use of race-conscious admissions policies in higher education.

In Fisher v. University of Texas at Austin, the high court led by Justice Anthony Kennedy reaffirmed precedent that race-conscious admissions policies are not inherently unconstitutional. Instead, Kennedy found that the lower court, the U.S. Court of Appeals for the Fifth Circuit, failed to apply heightened judicial review to the university’s admissions policy, which takes race into account. The university’s admissions policy was challenged by a white woman, Abigail Fisher, after she was denied admissions. Fisher lodged the lawsuit against university officials arguing that its race-conscious policy violated the Constitution’s Equal Protection Clause.

In a brief majority opinion, Kennedy reaffirmed the high court’s precedent on the use of race in higher education admissions policies. Admissions policies that consider race must be reviewed “under the Fourteenth Amendment” and subject to “strict scrutiny, for when government decisions ‘touch upon an individual’s race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling government interest.’” Citing the same opinion, in Regents of the University of California v. Bakke, Kennedy noted that the high court had “identified one compelling interest that could justify the consideration of race: the interest in the educational benefits that flow from a diverse student body.”

Nevertheless, the majority punted the case back to the Fifth Circuit, finding that it failed to properly apply a heightened judicial review. Instead the Fifth Circuit, Kennedy wrote, did not subject the university’s admissions policy to rigorous review as called for in the 2003 high court opinion, Grutter v. Bollinger, which upheld the University of Michigan law school’s race-conscious admissions policy.

“Strict scrutiny does not permit a court of appeals to accept a school’s assertion that its admissions process uses race in a permissible way without giving close analysis to the evidence of how the process works in practice,” Kennedy wrote.

He concluded, in part, “In this case, as in similar cases, in determining whether summary judgment in favor of the University would be appropriate, the Court of Appeals must assess whether the University has offered sufficient evidence that would prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.”

Chemerinsky, founding dean and distinguished law professor at the University of California, Irvine School of Law, wrote, “Those who care about diversity in higher education can breathe a sigh of relief: the Court did not end affirmative action nor significantly change the law with regard to the ability of colleges and universities to use race as a factor in admissions policy."

Clegg, president and general counsel of the Center for Equal Opportunity, responded, “In the short term, the case is a loss for the University of Texas and for supporters of racial preferences in university of admissions, because a court of appeals ruling that upheld such discrimination has been vacated and remanded.”